After the Sixth Circuit was selected via a lottery in November to hear the consolidated challenges made against the recent OSHA emergency temporary standard (the “ETS”), there has been a flurry of activity in the case. There are currently two main issues pending before the court, which will certainly shape the dispute: (1) several petitioners
On October 21, 2021, we published an article called “Waiting for OSHA: pending vaccine ETS and increased enforcement.” In the article, we discussed the then-pending Emergency Temporary Standard (ETS) regarding vaccinating the workforce OSHA was tasked with developing by President Biden in his “Path Out of the Pandemic” memorandum. The ETS is scheduled…
Since President Joe Biden issued his “Path Out of the Pandemic” memorandum and Executive Order 14042 on September 9, 2021, employers have had to navigate piecemeal instructions on vaccine mandates. For example, federal contractors and subcontractors received vaccine mandate guidance from the Safer Federal Workforce Task Force on September 24, 2021. However, employers should not grow too comfortable with the current status of pandemic regulations, which continue to change in various jurisdictions and will again on a federal level soon.
OSHA’s Emergency Temporary Standard
In his “Path Out of the Pandemic” memorandum, President Biden specifically tasked the Occupational Safety and Health Administration (OSHA) with developing a rule to encourage vaccinations among the workforce – the Emergency Temporary Standard (ETS). The ETS will require employers with over 100 employees to do the following:
- either (a) ensure all employees are fully vaccinated, or (b) require any employees who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work; and
- provide paid time off for any time to get vaccinated and/or to recover if they are ill post-vaccination.
State plans will be required to implement equally protective rules within 30 days. Though not yet available for review, the status of the pending ETS remains under review by the White House Office of Management and Budget.…